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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shanmuganathan, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1293 (Admin) (18 May 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/1293.html Cite as: [2012] EWHC 1293 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
sitting as a Deputy Judge of the High Court
____________________
THE QUEEN (on the application of THIRUKKUMARAN SHANMUGANATHAN) |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Mr Denis Edwards (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 15 May 2012
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Crown Copyright ©
Philip Mott Q.C. :
Introduction
Immigration History
Breach of section 13 of the 1999 Act
(1) This section applies if a person –
(a) is to be removed from the United Kingdom to a country of which he is a national or citizen; but
(b) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel.
(2) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data.
(3) In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.
Type of case: FAS [failed asylum seeker]
All appeal rights exhausted: Y
Date final appeal dismissed: 01/11/2010
Date of asylum claim: 30-11-2006
i) The Claimant's primary submission is that disclosure in breach of section 13 automatically gives rise to a bar to the removal of the Claimant using documents obtained as a result of that unlawful disclosure. Such a bar would operate whether the disclosure was inadvertent or deliberate, and arises as a matter of statutory interpretation, not under the discretionary supervisory powers of this court.
ii) The alternative submission is that such unlawful disclosure gives rise to a discretionary power to bar removal using documents obtained as a result of that disclosure, not because of the risk to the Claimant but as part of this court's powers to control misuse of executive powers. Like any discretion, its exercise would be case-specific, but any deliberate disclosure would be likely to be treated seriously and severely. The Claimant submits that this was a deliberate disclosure of prohibited material.
iii) Finally, unlawful disclosure carries an inevitable risk of prejudice to the Claimant, as the purpose of the prohibition in section 13 is to protect a failed asylum seeker from the risk of retribution in his or her home state. Where there has been such disclosure, this must be considered in deciding whether there is further information amounting to a fresh claim. I shall deal with this limb of the submissions in the context of the fresh claim arguments.
Fresh Claim
"The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection"
i) In the previous appeal before IJ Rabin the Claimant gave evidence, but his account was rejected as not credible.
ii) In the instant appeal the Claimant was present but did not give evidence. Instead he relied on a medical report from Dr Willcox prepared after the previous appeal was dismissed.
iii) IJ Ievins took as his starting point the findings of IJ Rabin, but modified them as a result of accepting the findings of Dr Willcox. As a result he concluded that the Claimant was ill-treated in the course of detention by the Sri Lankan army in 2006, and that this was quite possibly because he was detained after a bomb blast near his shop (he was a mechanic who repaired TVs and radios, the bomb was detonated by a remote control device, and he had remote control devices in his shop). The ill-treatment was serious, leaving various scars, including lesions to the anus consistent with it being penetrated by a rubber pipe.
iv) The Claimant was released without charge. There was no further adverse interest shown in him. He was allowed to leave Sri Lanka through Colombo airport on his own passport without difficulty.
v) The Claimant's account of his fear of the Karuna group after his release had been rejected by IJ Rabin, and there was nothing to upset that finding. To that extent, therefore, the finding that the Claimant's account was not credible remained valid.
vi) There was no outstanding arrest warrant.
vii) Considering all the relevant factors identified in the cases of LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049, the Claimant would not be at risk of persecution, torture or inhuman or degrading treatment or punishment if returned to Sri Lanka.
i) The existence of an arrest warrant for the Claimant issued in Sri Lanka. This was provided to the Defendant with the letter of 17th March 2011. In addition there is a letter from a Sri Lankan lawyer validating the arrest warrant and giving further information relevant to it. This was provided to the Defendant with the letter of 23rd March 2011.
ii) The disclosure of information to the Sri Lankan High Commission in connection with the application for an emergency travel document. This is not considered in the decision of 19th May 2011 but the Defendant does not propose to make a supplemental decision, preferring to defend the decision already made even taking this into account.
iii) The interview of the Claimant by staff from the Sri Lankan High Commission in April 2011 following the unlawful disclosure. This also is not considered in the decision of 19th May 2011, but the Defendant takes the same stance in regard to it.
Conclusion